The Duty of Care to Third Parties – Professional Negligence Overview Part II
What if someone’s professional negligence affects a third party who is not their client?
Duty of care to third parties
The law requires a professional to act with the care and skill to be expected from a reasonably competent member of their profession.
The law may impose this duty of care on a professional in respect of somebody who isn’t their client. This will depend upon the circumstances, and the following criteria will need to be satisfied:
- Is the third party’s loss ‘foreseeable’ to the professional?
- Is there a sufficiently close relationship between the professional and the third party?
- Would it be fair to impose a duty of care on the professional in respect of the third party?
So, for example, it can be said that a solicitor preparing a Will has a duty of care to the beneficiaries under the Will: Although the person making the Will has contracted with the solicitor for that service, the criteria above would be satisfied in respect of the non-contracting, ‘third party’ beneficiaries.
In some circumstances the law assumes that, because of their behaviour, a professional has assumed responsibility for a third party, and a duty of care is imposed in this way.
The law of contract is separate to the law of negligence. However, a third party may be able to sue a professional for breach of contract.
The law generally prevents anyone who has not signed – or in other words is a party to – a contract from suing in relation to it. Thanks to the Contracts (Rights of Third Parties) Act 1999 there are two exceptions to this rule: (i) If the contract expressly says that they can sue; or (ii) if the contract says that the third party should receive some sort of benefit under the contract. For this reason many contracts include words to the effect that “the Contracts (Rights of Third Parties) Act 1999 will not apply”.